Posts from the ‘Federal Child Support Guidelines’ Category

If You are Divorced in a Foreign Country, Can a Canadian Court Make Orders Too?

The facts in Cheng v. Liu are a little unusual, but the core question was this:

If a couple’s divorce is validly granted outside of Canada by a foreign court, does this preclude a Canadian court from later making any corollary orders – such as rulings on issues of support or custody – arising from that same divorce?

The husband, an engineer, was a Canadian citizen who lived in Canada. The wife lived in China and had never been to Canada. They got married in China in 2006 and had a daughter who lived with the wife in China her entire life. They separated about a year after getting married, in around late 2007 or early 2008.

The wife then covered all the legal bases: She applied in China for a divorce, and custody of their child. She also applied in Canadian, under the federal Divorce Act, to ask for a divorce, as well as spousal support, child support, and custody. Finally, also in Canada under the Ontario Family Law Act, she asked for equalization of net family property.

Meanwhile, the Chinese court granted the wife her divorce and awarded her sole custody of the child. The wife’s other Ontario-based claims were still pending.

The husband, faced with all of these competing actions requiring his response, asked the Ontario court to suspend (or “stay”) the proceedings so that the entire matter could be determined in China. This led to several rulings and some procedural wrangling, and ultimately a hearing before the Ontario Court of Appeal for its determination.

Against this complicated background the Ontario Court of Appeal had a simple question to consider: In light of the Chinese divorce order, could a Canadian court make additional orders relating to child support, spousal support, and equalization of property?

The Court’s conclusion was mixed: The divorce-related issues were closed for consideration, but the child support issues were still up for an Ontario Family court to rule on.

On the first point – and based on longstanding precedent that considered the provisions of the federal Divorce Act – the law states that once the foreign Chinese court had made a valid divorce order, this removes the authority of the Ontario court to hear and determine corollary matters. So on the remaining divorce-related issues, the Ontario court had no authority.

However, the situation under the provincial Family Law Act was different: the Ontario court could still rule on questions relating to child support, since the foreign court in China had not already done so in its divorce order. The Family Law Act allowed child support claims to be made even after a divorce, and the foreign divorce order had no impact on that. Indeed, the whole purpose for the Ontario legislation was to ensure that parents provide financial support for their dependent children. Allowing the Ontario court to continuing to make orders under the Family Law Act even though the Divorce Act provisions had been trumped was actually a harmonious outcome to ensure child support would be covered.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Most separated and divorced parents are at least vaguely aware that there are certain enforcement mechanisms available in cases where a parent fails or is unwilling to pay the child support that he or she has been ordered to pay by a court.

Specifically the Family Responsibility Office (FRO), which is a provincial government agency, enforces child and spousal support from delinquent support-payers, and to this end has various enforcement tools at its disposal. These include garnishment of the support-payer’s wages, and suspension of his or her driver’s license.

But people may not be aware that a parent in default may also face jail time, under the provisions of the Family Responsibility and Support Arrears Enforcement Act (“FRSAEA”). Although this outcome is not common, it does arise in some cases.

The recent decision in Ontario (Director, Family Responsibility Office) v. Garrick was one of them. The father owed child support arrears for over $55,000, which amount had been racked up over several years. He explained the non-payment with the fact that much of those years had been spent behind bars, after his highly-publicized conviction for fraud perpetrated against several well-known people, including “two football icons” and a doctor at the Hospital for Sick Children. And while he had now served his time and was released, he claimed that with his criminal record and notoriety, he was now practically unemployable in the community.

The court did not buy it. It observed that the father had not provided financial disclosure of his income, nor did he bring forth evidence as to the jobs he had applied for, or the rejections he received. The court also added that his evidence fell short in other ways, too:

A payor in a default proceeding has the onus [under the FRSAEA] of proving that he or she has accepted responsibility to pay child support and has placed the child’s interests over his or her own. Mr. Garrick has provided no evidence of having done anything of the sort.

Indeed – and despite the father’s claims to the contrary – the court found that he was healthy and employable, but had wholly abdicated his support responsibilities to his child while continuing to live an affluent lifestyle. He had spent a full seven years actively avoiding his financial obligations to his own child.

Turning to the available recourse in these situations, the court noted that the role of incarceration was to compel the father’s compliance with his support obligations, not to punish him. However, the court added:

I have considered all of those submissions. But the court must conclude that this is a textbook case of a payor arranging his affairs in order to avoid paying the support that he has been found to be capable of paying. [The father] has carried the metaphorical keys of his prison in his pocket. If he is incarcerated, he has, for reasons of his own, chosen to lock himself in.

The court ordered the father to be incarcerated for 90 days, or until the child support arrears were paid in full. Additional jail time was ordered in the event that on a going-forward basis the father continued to put himself in default.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

In this legal video, we review enforcement in Ontario is done through a provincial government office called the Family Responsibility Office (FRO). The court automatically files all support orders made after July 1, 1987 with the FRO. Separation agreements can also be filed there if they have been filed with the court and then mailed to the FRO.

The parent who is to pay support is told to make all support payments to the FRO. When the FRO receives a payment, it sends a cheque to the parent with custody, or deposits the money directly into that parent’s bank account. It only does this after it has received the money from the paying parent.

The FRO uses different ways to get the payments that are owed. It can:

• get the payments directly from the parent who is supposed to pay support

• have the payments automatically deducted from the parent’s wages or other income (other income includes things like sales commissions, Employment Insurance, Workers’ Compensation, income tax refunds, severance pay, and pensions)

• register a charge (a lien) against the personal property or real estate of a parent who fails to pay the support that he or she owes

• garnish (take money from) the bank account of a parent who fails to pay support

• garnish up to 50% of a joint bank account that he or she has with someone else, or

• make an order against another person who is helping a parent hide or shelter income or assets that should go toward support

The FRO can put more pressure on parents who do not make their support payments by:

• suspending their driver’s licences

• reporting them to the credit bureau so that it will be difficult for them to get loans, or

• canceling their passports.

Once the order or agreement is filed with the FRO, then it is the FRO, not the other parent, that is responsible for any actions taken to enforce it.

Top 5 (or so) Little-Known Facts About the Family Responsibility Office

I have written before about the role and mandate of the Family Responsibility Office (FRO). While that blog piece outlined the general duties (which includes the collection, distribution and enforcement of child and spousal support payments), there are some aspects of the FRO’s role with which many people may not be familiar.

Here are some facts about the FRO that may surprise you:

1) The FRO is not just about support.

The FRO’s role is not limited to enforcement child and spousal support obligations: It also enforces private written domestic contracts such as separation agreements, marriage contracts, cohabitation agreements, paternity agreements and family arbitration agreements (provided these have been filed with the Ontario Court of Justice or the Superior Court of Justice (Family Court) beforehand.

2) But, there are some things the FRO will not touch.

There are certain support-related aspects that the FRO will not get involved with. These include:

a. bringing motions to the court to change the amount of support owing; and

b. getting involved with any issues relating to entitlement to support, or custody or access.

3) The FRO can actually reduce the support owed, sometimes.

Under the governing legislation, the FRO has the discretion to reduce or even terminate the amount of support that it will enforce in narrow circumstances, namely where:

a. one or more kids ceases to be eligible for support;

b. where the parents agree in writing that a “terminating event” has occurred with respect to their kid or kids; or

c. where the parent entitled to receive support fails to respond to the FRO within 20 days.

4) The FRO can cast a wide net.

Given that it has enforcement agreements with every Canadian province and territory, with every state in the United States of America, and with 31 countries, the FRO can enforce child and spousal support payments even in situations where one party lives outside Ontario. This is specifically authorized under the Interjurisdictional Support Orders Act, 2002.

5) It has some tricks up its sleeve.

Among the more usual enforcement actions that the FRO can take against you if you are in default of your payments (e.g. garnishing your wages), there are some perhaps-unexpected ones. These include:

c. reporting you to your professional or occupational organization; and

d. even seizing your lottery winnings!

6) It has a “Most Wanted List” (sort of).

The FRO, through the Ministry of Community and Social Services website, maintains a public list of what it calls “missing, irresponsible parents who have defaulted on the payments owed to their kids”. Located at www.goodparents.pay, it can display a wide array of information about defaulting payors, including:

a. name

b. physical description (height, weight, hair and eye colour)

c. approximate age

d. last known address

e. usual occupation/trades, and

f. language(s) spoken.

7) Even bankruptcy doesn’t do it.

It may seem tempting to declare bankruptcy to avoid the long arm of the FRO; however, your support arrears merely become a claim that is made against your estate, with the FRO dealing directly with the bankruptcy trustee like any other creditor.

Do you have questions about how the FRO can help you get the support to which you are entitled?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

In Hari v. Hari, the couple were married for eight years and had one child together. However, the mother also had a daughter from a previous relationship, and one whom the father (i.e. now the stepfather) had financially supported and treated as his own. In fact, from a legal standpoint the stepfather “stood in the place of a parent” to the girl for 12 years, until he and her mother separated.

Once the separation occurred, the mother – now unemployed and receiving employment insurance – needed child support. The girl’s own biological father had historically been unreliable: the mother knew little more than that he was living outside of Ontario, and that he worked in the music business. More to the point, the mother had no idea what he earned and she had received virtually no support from him at all over the years.

This being the case, the mother went to court to ask for an order that the stepfather should pay support for both the child they had together, as well as for the mother’s daughter from the previous relationship. The stepfather disputed that he should pay support for the mother’s daughter, especially since his relationship with the girl had completely broken down since the separation.

The court, in considering the circumstances, applied the following approach based on previously-established legal authority, in order to “do the math” on the support amount:

1) it determined the amount otherwise payable by the stepfather under the Child Support Guidelines (including special expenses and any adjustment for undue hardship);

2) it determined the “legal duty” of the biological father to contribute child support; and

3) it considered whether it is appropriate to reduce the stepfather’s obligation under the Guidelines.

The court also took the approach that once the stepfather could establish that the biological father (and, for that matter, the mother) also had a duty to support the child, it was then up to the mother to demonstrate why the stepfather’s support obligation should not be reduced in an amount commensurate to the support owed by the biological father and mother.

Using this formula – and rejecting his contention that he should pay no support for the girl at all – the court ordered the stepfather to pay support in the full Guidelines-mandated amount, at least until there was some evidence brought to court as to what the biological father could afford to contribute.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

Wednesday’s Video Clip: Top 4 points about enforcing child and spousal support payments

For those ex-spouses who are subject to a court order or have agreed that one of them will pay spousal or child support to the other, there are several points about the enforcement of such orders or agreements that are noteworthy, this video will review four points to consider.

As many of you know, in Ontario the government’s Family Responsibility Office (FRO) is charged with the task of helping enforce spousal and child support orders. To do this, the FRO has been given an arsenal of enforcement mechanisms to be used against the parent in default of a support order – including garnishing wages or income tax refunds, having a lien placed on property, and suspending his or her passport.

But one of the more routine enforcement mechanisms is for the FRO to suspend the driver’s license of the defaulting payor until he or she has paid the support arrears or has satisfied other terms of the support order.

Certainly this adds a significant level of inconvenience to the payor’s life, and likely provides a very effective incentive for paying arrears and support. But what happens if that person relies on being able to drive, as a means of earning his or her livelihood?

This was precisely the quandary in the recent Ontario decision in Dumais v. Dumais. There, the father had been ordered to pay about $300 in monthly child support, based on his income. However, he never voluntarily paid that support and quickly fell into arrears which over time totalled about $40,000. The mother applied to the FRO for assistance to enforce the support order and collect the arrears.

The matter came before the court when the father asked to have the arrears rescinded, and to have his support reduced to zero. In this context, the court had to consider whether the FRO’s suspension of the father’s driver’s license was reasonable in the circumstances.

The court observed that if it allowed the license suspension to continue, then the father would lose his job as a taxi driver and have no source of income whatsoever. This, the court found, was counter-productive and moreover would prevent the father from driving to exercising access to his child (who was in the custody of the mother).

Instead, the court arrived at something of a compromise: Rather than allow the FRO to suspend the father’s license for arrears – which it said would be “catastrophic” – it essentially suspended the FRO’s suspension in connection with the arrears only. The father was not totally off the hook, however: Any going-forward support would still be subject to the FRO’s enforcement mechanisms. The husband’s support obligations were reduced slightly, to $267 per month, based on his most recent income levels.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

The question considered by the Ontario court in the recent case of Zhang v. Jones was this: If an adult child’s educational path is filled with poor marks, frequent direction-changes, and periods of dropping out, is the support-paying parent’s obligation toward that child affected?

The parents had a son together who was now 22 years old. When they separated, the father was ordered to pay about $900 per month in child support for him. However, the father went to court to have that changed: he claimed that the boy was not serious about his education, and had failed to diligently and actively apply himself to his university studies in particular. More to the point, the father claimed the boy had effectively terminated those studies without telling him.

The mother, in contrast, wanted the support to continue: She blamed the son’s poor marks and erratic attendance history on his purported anxiety and depression. She also claimed that – aside from a four-month period where his depression had interfered – the son had had indeed been in school continuously, and moreover was now actively pursuing a college education.

In considering its decision on support, the court chronicled the boy’s educational meanderings, which included twice changing the direction of his studies, dropping courses, not carrying a full course load, and performing poorly in the courses he was taking. His present overall efforts in connection with his college education were equally unimpressive. While noting that the son claimed to have had a “complete mental breakdown” at one point, the court could draw no firm conclusions as to the factual reason for his poor scholastic performance. The son and the mother had failed to provide any definitive medical proof of the son’s alleged depression.

In short, the court concluded that there was nothing medically wrong with the son; it said “his conduct is equally consistent with someone who for two school years … just did not apply himself to his studies.” Specifically:

Since 2009, [the son] has been given ample and substantial opportunities to pursue his higher education. For three years he has not applied himself and has squandered his time. On the evidence I am not persuaded that [the son] has been suffering from a mental illness. Not for lack of trying on his mother’s part [the son] has also been encouraged to deal with his emotional and psychological challenges which he has refused to do in any serious way.

The revealed quality of his last scholastic efforts at Algonquin College does not demonstrate any effort or resolve on his part to make any changes in his life. In his own words it is “too little, too late”. It is unrealistic of him to expect to be supported by his parents indefinitely in the face of this history.

As a result, the court held that the boy had ceased being a child of the marriage, and that the father’s obligation to pay support had likewise come to an end.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Father Moves Kids to France for Their Soccer – Should Mother Have to Pay?

Lifestyle choices are difficult in all families, and become even more so when the parents are separated or divorced. These difficulties are compounded when those choices come with associated financial costs, since issues can arise as to how they should be allocated and whether the costs are reasonable.

This was the issue in Cantave v. Cantave, where the parents had two boys, both of whom were now teens and both of whom – according to the court – were “interested in and had some proficiency in soccer.” The father, who had himself played, coached, and refereed soccer over the years, felt that the soccer training opportunities were better in France.

With this in mind, prior to their separation the couple agreed that the father would take an unpaid 1-year leave of absence from his $80,000-per-year federal government job, so that he could move temporarily to France in September 2010 with both boys. This would allow the eldest son to join a soccer academy to which he had been accepted, and would allow the youngest to be exposed to a higher level of soccer training in that country. The plan was for the three of them to return to live in Ottawa at the end of that school year.

Meanwhile, the mother announced her separation from the father shortly after he and boys moved, in mid-September of 2010.

The couple negotiated a interim written separation agreement in which they agreed the boys would stay with the father for a second year in France, but would return to Ottawa in June 2012. The mother, who was a lawyer earning $150,000 with the government, agreed to pay support of $4,000 per month.

However during the 2011 school term, and contrary to this agreement, the father indicated that he would not be returning to Ottawa with the boys in 2012 as promised. He claimed that they wanted to stay there to train in soccer for another year at least. He put some finality to this unilateral decision by formally opting not to return from his leave of absence, effectively quitting his job.

The mother asked the court to enforce the separation agreement in which the father agreed to return, and to reduce the monthly support to $1,000 immediately, with some incremental increases in subsequent years. While she accepted her legal obligation to pay child support, she objected to having to pay a disproportionate share due to the father’s unilateral decision to quit his job and move the boys to France.

The court considered these circumstances, and essentially agreed with the mother. The father’s decision to unilaterally quit a job that paid him $80,000, and to his refusal to honour the contract requiring him to return with the boys to Ottawa, were essentially unilateral lifestyle choices that the mother should not be expected to subsidize. The court wrote:

If it is considered necessary due to soccer aspirations, that one or both boys remain in France for that purpose, these would not be the first 16 and 15 year olds who live away from home to pursue an interest in hockey, ballet or soccer.

[The father] is making decisions which have financial implications. It is unrealistic after two years to conclude that [the mother] should be fully responsible for such decisions by her husband, especially when they had agreed that he and the boys would return to Canada one year ago.

The court therefore calculated the support payment payable by the mother by pretending that the father earned $50,000, rather than $12,000 in annual income he claimed.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

In 1997, the federal government brought in a set of new rules and tables for calculating the amount of support a parent who does not have custody of his or her child must pay to the parent who has custody.

These rules and tables were later adopted by the Ontario government and are set out in the Child Support Guidelines.

Child Support Questions

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About FamilyLLB

FamilyLLB is written by Russell Alexander, a divorce and family law lawyer based in Ontario, Canada. For nearly twenty years, Russell's firm has helped clients who are going through a separation or divorce. You can find more of Russell's online commentary via Twitter, Google+, LinkedIn, or on the firm's Facebook page.